Special Education

Study Finds ‘Section 504’ Rules Source of Confusion for Schools

By Christina A. Samuels — March 18, 2008 6 min read
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Students with health or cognitive problems who aren’t eligible for services under the Individuals with Disabilities Education Act have protection under another federal law: Section 504 of the Rehabilitation Act of 1973.

But school administrators may be confused about evaluating students for Section 504 eligibility, research conducted by a Pennsylvania middle school principal and a law professor shows.

“There’s a lot of openings for problems and slip-ups,” said Rachel A. Holler, the principal of Stewart Middle School in Norristown, Pa., who conducted the research as her doctoral thesis. A report on her findings, written with Perry A. Zirkel, was published in this month’s edition of the NASSP Bulletin, a publication of the National Association of Secondary School Principals.

The study is the first that has attempted to quantify the number of students nationwide who are receiving accommodations through Section 504, according to Ms. Holler and Mr. Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa., where Ms. Holler earned her doctorate.

Their estimate, based on answers received in 2005 from 549 public school administrators, suggests that about 1.2 percent of public school students receive Section 504 services only, compared with 12 percent served under the IDEA.

Every student who is eligible for help under the IDEA is also covered under Section 504, which prohibits discrimination against people with disabilities by any agency that receives federal money.

Not all Section 504 students, however, are necessarily eligible for special education services. And recent legal decisions suggest that a child who is not eligible for the IDEA is likely not eligible for Section 504 accommodations either, the researchers say.

‘Forgotten Stepchild’

The survey of principals shows, though, that school leaders are more likely to err on the side of providing accommodations to students anyway. Educational accommodations could include allowing extra time on tests and quizzes, moving students to the front of the classroom so they can see and hear the teacher better, or providing a student written class notes.

A Closer Look at Section 504 and the IDEA

Both federal civil rights laws provide protections for students with disabilities. Section 504 covers other areas including employment, while the Individuals with Disabilities Education Act deals solely with schools.

Section 504 of the Rehabilitation Act of 1973

• Prohibits discrimination against people with disabilities by organizations that receive federal funding.

• Three-part definition for qualification that is broader than IDEA: Student must have (1) a physical or mental impairment that (2) substantially limits (3) one or more “major life activities.”

• Students can be eligible for Section 504 without being eligible for the specific protections of IDEA.

• Schools must comply with Section 504, but the federal government provides no specific funding for this purpose.

• Federal government does not require Section 504 reporting.

• The office for civil rights of the U.S. Department of Education enforces compliance.

• Parents have the right to request a due-process hearing in the case of disagreement with a school.

Individuals With Disabilities Education Act (1975)

• Entitles students with disabilities access to a “free, appropriate public education.”

• IDEA-eligible students must qualify in one of 13 disability classifications.

• All students who are IDEA-eligible are also covered under Section 504.

• The federal government provides partial funding for IDEA-eligible students.

• States are required to report compliance data to the federal government on IDEA.

• The office of special education and rehabilitative services of the Department of Education administers IDEA.

• Parents have the right to request a due-process hearing in the case of disagreement with a school.

Sources: Rachel A. Holler and Perry A. Zirkel

While some schools may “overidentify” Section 504 students, there may be students who are eligible to receive Section 504 accommodations but are not getting them, Ms. Holler said. The former math teacher said that when she was employed by an urban district, she never heard about the federal civil rights law. Once she moved to a suburban district, it was mentioned often, she said.

“It made me think, wow, why do I not know about this?” Ms. Holler said. She would also hear some confusing comments, such as that Section 504 was “more legally binding” than an individualized education program, which is mandated under the IDEA.

In schools, “you have your person who is a special education coordinator, but you often don’t hear about a 504 coordinator,” Ms. Holler said. “It does seem like it’s a forgotten stepchild.”

The best-known and litigated area of special education law is the IDEA, which has produced a deep body of case law, literature, and guidance for teachers, administrators, and parents since its enactment in 1975 as the Education for All Handicapped Children Act.

The IDEA deals directly with education, in contrast to Section 504, which covers more areas of public life. A similar but newer law, the 1990 Americans with Disabilities Act, covers all of the services, programs, and activities conducted by public entities, including state and local governments.

Instead of determining whether a child falls into one or more of the 13 disability categories outlined by the IDEA, administrators evaluating a student for Section 504 help must decide if the child has a physical or mental impairment that substantially limits one or more major life activities. For students, “learning” is a major life activity.

But complexity creeps in because some disabilities—for example, attention deficit hyperactivity disorder—could merit either special education services or accommodations offered by Section 504.

And just the fact that a child has a disability is not enough. If a student can be brought up to the standards of an average peer through the use of “mitigating measures,” that child is legally not eligible for Section 504 services. That standard could eliminate from consideration, for example, students with ADHD who are successfully treated through medication, or a child whose asthma is controlled by an inhaler.

‘Substantial Limitation’

The “substantial limitation” standard of Section 504 also requires that a student be measured compared with an average peer, not against his or her own potential, Mr. Zirkel said. Such a standard makes it difficult for high-achieving students to qualify for a Section 504 plan, he said, since their disabilities appear to place no “substantial limitation” on their learning compared with that of other students.

In the survey, about 60 percent of the school administrators answered incorrectly that they provide accommodations so that the student could learn up to his or her full potential.

The study also notes that Section 504 students tend to be clustered at the middle and high school level, with a far smaller percentage of such students at the elementary school level.

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Mr. Zirkel said recent legal rulings have tended to make the law more “stingy,” but administrators may still feel compelled to give accommodations as “consolation prizes” to students whose disabilities aren’t severe enough to qualify them for special education.

“There’s a big difference between what the ‘lore’ is, and what the law is,” Mr. Zirkel said.

While the IDEA is sometimes criticized as being an overprescriptive law that doesn’t offer enough flexibility to districts, the broad, definition-free nature of Section 504 offers its own pitfalls, said Edward M. Friedlander, the executive director of pupil-personnel services for the 3,400-student Jericho, N.Y., school district.

“The 504 has some overlap with IDEA; it has more flexibility, which is good and bad; and has more ambiguity, which is good and bad,” said Mr. Friedlander, who has heard a presentation from Mr. Zirkel on the law.

For example, Section 504 makes no mention of how often students should be re-evaluated or who in a school is responsible for deciding which students need services, Mr. Friedlander said.

No Federal Money

Overidentifying students would not seem to spark the same kind of litigation that schools get into when they withhold services. But the problem with giving Section 504 accommodations too widely, Mr. Friedlander said, is that districts don’t get any federal funding for assistance, as they do with the IDEA.

The twists and turns of the law also can be confusing to lawyers and advocates for parents, said Bill Brownley, a lawyer in Fairfax, Va. He agrees that 504 plans are sometimes given out to mollify parents.

“And sometimes people think, we’re giving them this prize, but we don’t have to do a lot,” Mr. Brownley said.

But once a child receives a Section 504 plan, he or she is eligible for many of the protections that are provided to students through the IDEA, said Charles A. Cognato, the assistant principal of Stetson Middle School in West Chester, Pa.

For that reason, his school follows a procedure similar to a special education evaluation for students who may need Section 504 accommodations, he said. Careful evaluation and a standard protocol throughout a school and a district are key, he said.

“As long as it’s needed and it’s implemented with fidelity and it helps the child make adequate progress, I don’t care if we have 500 out of 1,000 [students with accommodations],” Mr. Cognato said.

A version of this article appeared in the March 19, 2008 edition of Education Week as Study Finds ‘Section 504’ Rules Source of Confusion for Schools

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